2023 (8) TMI 1264 - HC - GST

Refund of unutilized ITC accumulated - Place / location of supply - services rendered by the petitioner of providing Satellite derived 3D model services - export of services or Online Information Database Access or Retrieval services as defined under Section 2(17) of the IGST Act?. Nature of the agreement entered by the petitioner with M/s, Emirates Defence Industries Co. PJSC - HELD THAT - As seen from the contents of the Agreement, the Agreement describes the petitioner to be engaged in the business of providing Satellite derived 3D model services and has considered skill, knowledge and experience in the field to perform such services and on such representation, the Emirates Defence Industries Co. PJSC had agreed to engage the petitioner to provide the services as defined in the Agreement to EDIC and any of its Affiliates designated by Emirates Defence Industries Co. PJSC. As clearly seen from Schedule-I of the agreement defining the Scope of services as also the Delivery Schedule and Deliverables and the Fee Clauses namely the Fees and Expenses and Payment Schedule , which we have extracted in the foregoing paragraphs, it is clear that supply of service was to be made to M/s. Emirates Defence Industries Co. which was not located in India. Also the place of supply of service was agreed to be outside India, as also the payment of such services was being received by the petitioner/supplier of service in convertible foreign exchange - petitioner certainly qualified the requirement of Section 2(6) that it was dealing in export of services in relation to the Agreement in question. Whether the impugned order is correct when it categories the service offered by the petitioner to be online information and database access or retrieval services (OIDAR) within the meaning of Section 2(17) of the IGST Act? - HELD THAT - In the present case, there is clearly an agreement of the petitioner with a party, which is a foreign party, whose location is outside the Indian territory. The agreement is clearly for a specialised work of providing 3D city models of Abudhabi, AL Ain, AL Dhafra. These are not works which would be freely available on the internet and / or are materials of the nature Section 2(17) would contemplate. Also undoubtedly the consideration as received by the petitioner for providing of such service is received in convertible foreign exchange, although through the foreign recipients / representative M/s. Bayanat LLP, as it is not the case of the department that such amounts as received by the petitioner are not under the Agreement in question. In fact the invoices clearly refer to the payment in US dollars to be when the contract of the petitioner with Emirates. There is no material to disbelieve the case of the petitioner for any reason whatsoever that the recipient of the service is not a foreign recipient - the petitioner is correct in its contention that merely because the petitioner has secured data from different source so as to create the services to be supplied to Emirates, it would not amount to the petitioner falling within the definition of Section 2(17). The appellate authority is not correct in its conclusion that in the context of Section 13 of the IGST Act, the place of supply in the present case be deemed to be located in taxable territory - Petition allowed.

Summary

Issues Involved:
1. Whether the services rendered by the petitioner qualify as "export of services" under Section 2(6) of the IGST Act.
2. Whether the services fall under the category of Online Information Database Access or Retrieval services (OIDAR) as defined under Section 2(17) of the IGST Act.
3. Whether the appellate authority's order denying the refund claim was valid.

Summary:

Issue 1: Export of Services
The petitioner, a company incorporated under the Companies Act, 1956, entered into a Service Agreement with M/s. Emirates Defence Industries Co. PJSC to provide 3D city models of Abu Dhabi, AL Ain, and AL Dhafra. The petitioner contended that the services rendered amounted to "export of services" as defined in Section 2(6) of the IGST Act, meeting all conditions, including receipt of payment in convertible foreign exchange. The petitioner filed a refund claim for accumulated unutilized input tax credit, which was initially sanctioned but later reviewed and denied by the appellate authority.

Issue 2: OIDAR Services
The appellate authority categorized the services provided by the petitioner as OIDAR services, which are defined under Section 2(17) of the IGST Act. The appellate authority argued that the services involved minimal human intervention and were mediated by information technology over the internet, thus falling under OIDAR. However, the court found that the specialized nature of the services provided by the petitioner did not meet the criteria for OIDAR services. The court noted that the services were not merely automated and involved significant human intervention.

Issue 3: Validity of Appellate Authority's Order
The court examined the nature of the agreement and found that the services provided were indeed export services. The court observed that the agreement clearly indicated the supply of services to a foreign recipient, with payment received in convertible foreign exchange. The appellate authority's interpretation was deemed erroneous, as it failed to consider the specialized nature of the services and the actual terms of the agreement.

Conclusion:
The court allowed the petition, setting aside the appellate authority's order and declaring that the petitioner is entitled to a refund on account of export of services. The court also directed that no recovery proceedings be initiated against the petitioner based on the impugned order. The rule was made absolute in terms of the relief sought by the petitioner, with no costs.